It’s been amusing to see how Obama apologists have taken Lawfare’s very helpful explainer on the NDAA’s detainee provisions to pretend that their president isn’t signing a bill that he believes authorizes the indefinite detention of American citizens.

Here’s how she claims that Lawfare proves that the bill doesn’t authorize indefinite detention of American citizens.

Key point rebutting the contention that the indefinite detention provisions apply to United States citizens:

Section 1022 purports not merely to authorize but to require military custody for a subset of those who are subject to detention under Section 1021. In particular, it requires that the military hold “a covered person” pending disposition under the law of war if that person is “a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda” and is participating in an attack against the United States or its coalition partners. The president is allowed to waive this requirement for national security reasons. The provision exempts U.S. citizens entirely, and it applies to lawful permanent resident aliens for conduct within the United States to whatever extent the Constitution permits. It requires the administration to promulgate procedures to make sure its requirements do not interfere with basic law enforcement functions in counterterrorism cases. And it insists that “Nothing in this section shall be construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency with regard to a covered person, regardless whether such covered person is held in military custody.” [emhasis original]

Of course, Karoli can only make this claim by pretending that section 1022–the section that makes military detention presumptive for non-citizens but doesn’t foreclose military detention of US citizens–is section 1021–the section that affirms the President’s authority to indefinitely detain people generally. And she can also make this claim only by ignoring the section where Lawfare answers her question directly.

Does the NDAA authorize the indefinite detention of citizens?

No, though it does not foreclose the possibility either.

The NDAA doesn’t do anything to exempt Americans from indefinite detention. And the reason it doesn’t–at least according to the unrebutted claims of Carl Levin that I reported on over a month ago–is because the Administration asked the Senate Armed Services Committee to take out language that would have specifically exempted Americans from indefinite detention.

The initial bill reported by the committee included language expressly precluding “the detention of citizens or lawful resident aliens of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.” The Administration asked that this language be removed from the bill. [my emphasis]

So the effect is that (as Lawfare describes in detail) the bill remains unclear about whether Americans can be detained indefinitely and so we’re left arguing about what the law is until such time as a plaintiff gets beyond the Executive Branch’s state secrets invocations to actually decide the issue in court.

But what’s not unclear is what Obama believes about the bill he’s signing. That’s true not just because (again, according to the unrebutted statement of Carl Levin) the Administration specifically made sure that the detention provisions could include Americans, but because the Administration used a bunch of laws about detention to justify the killing of American citizen Anwar al-Awlaki.

And, as Charlie Savage has reported, the legal justification the Administration invented for killing an American citizen in a premeditated drone strike consists of largely the same legal justification at issue in the NDAA detainee provisions.

The 2001 AUMF, which purportedly defined who our enemies are (though the NDAA more logically includes AQAP in its scope than the 2001 AUMF)

Hamdi, which held the President could hold an American citizen in military detention under the 2001 AUMF

Ex Parte Quirin, which held that an American citizen who had joined the enemy’s forces could be tried in a military commission

Scott v. Harris (and Tennesee v. Garner), which held that authorities could use deadly force in the course of attempting to detain American citizens if that person posed an imminent threat of injury or death to others

In other words, Obama relied on substantially the same legal argument supporters of the NDAA detainee provisions made to argue that indefinite detention of American citizens was legal, with the addition of Scott v. Harris to turn the use of deadly force into an unfortunate side-effect of attempted detention. [original typos corrected]

We don’t have to guess about what the Administration believes the law says about detention and its unfortunate premeditated side effect of death because we have the dead body of Anwar al-Awlaki to make it clear that the Administration thinks Hamdi gives the Executive expansive war powers that apply even to American citizens.

You don’t get to the targeted killing of American citizens (which, after all, doesn’t offer the possibility of a habeas corpus review) without first believing you’ve got the power to indefinitely detain Americans (with habeas review).

Now, to Obama’s, um, credit, I don’t think he actually wants to indefinitely detain Americans. He seems to have figured out that the civilian legal system is far more effective–and plenty flexible–for detaining terrorists for long (and usually life, in the case of actual terrorist attackers) sentences. He doesn’t necessarily want to use the power of indefinite detention he believes he has, but (as the unrebutted claims of Carl Levin make clear) he wants to be able to continue to claim he has it, probably because a bunch of other claimed authorities–demonstrably, targeted killing, and probably some kinds of domestic surveillance–depend on it.

But that doesn’t excuse what he will do by signing the bill into law. He’s signing a bill that grants the executive broad powers of detention that he believes to include American citizens. And while he may not want to detain Americans, that’s no guarantee that President Newt won’t want to.

I don’t understand what is so difficult for people to understand about this. We crossed a line on June 9, 2002 when Jose Padilla was declared an enemy of the state combatant and transferred to military custody. It has been the de facto reality that the POTUS has the sole power to declare any U.S. citizen (or any other person in the entire world) to be a non-person who may be indefinitely detained, tortured, or killed. He doesn’t have to tell anyone why you are a terrorist; he just has to assert that you fall into one of the the groups we are “at war” with. His decision can’t be questioned in any meaningful way. We live in a constitutional dictatorship where we get to elect the dictator every four years.

In the years since Padilla was locked away, our institutions and elites have been arguing over how to make this de facto state of affairs in to a de jure legal regime. There’s never been much of a taste for rolling back Bush’s bold power grab. It has been a slow and winding path towards the complete institutionalization of the new American dictatorship, but we are almost there.

@William Ockham: Well, the President now DOES have to tell the courts why he thinks you’re a terrorist if he holds you in the US or Gitmo. Mind you, after Latif, the courts can’t object to the quality of evidence you present to support your claim. But he does have to make his case.

Also, I don’t think this is a matter of “understanding.” It’s about belief, which often works best in the absence of understanding.

Thanks for this, EW.
Your work shows once again how the AUMF is the basis for Constitution-shredding laws. And the worst thing is, I don’t see any end to the AUMF. Only a president like Ron Paul might be able to end the damned thing. Who else? What else? Congress??? Ha. Bad joke.

@Bob Schacht: Well Bob, believe it or not, some of the Obama apologists Marcy describes in the intro to this post are actually saying “don’t worry (be happy) Obama and Congress will fix it if necessary”.

@bmaz: Thanks for that link. I think one of the problems with the whole debate is it leaves aside what the status is absent any further review by a court (as Bush and Obama both avoided through a variety of legal means) or what the status is in court.

Because so long as the Admin gets to interpret the law in secret and invoke state secrets to avoid court review, the law says what the Admin says it says. And I agree with Wala that the 1021 language expsnds the zenith of Youngstown (though I’ve already said taht).

@emptywheel: Yes, and, perhaps in a roundabout fashion, I think Nick Baumann kind of stumbled into this in his piece on rendition today at MJ. There are STILL a LOT of modalities for playing hide the pea detainee under the moving shell of jurisdiction in regards to status. And the courts, instead of putting a quick end to that shit, have so far seemed curiously relieved that they don’t have to deal with it on the merits.

@emptywheel: I’m starting to see all that stuff as window dressing, or maybe more accurately just the sign pointer towards what not to do. In effect, the current legislation is saying we (Congress, and by extension, society as a whole) are more than happy to look the other way while you kill, torture, and/or indefinitely detain people just so long as you don’t bring them to the U.S. or GITMO. Currently, the incentives for the Executive Branch lead them to conduct assassinations. Then, there is no way to challenge the action and no effective recourse. For the moment, there are political restrictions on these assassinations such that they have to be conducted in third world countries, but I wonder how long that will last.

@bmaz: But here’s an indication of a possible Blue Moon rising: My Tea Party Congresscritter who is wrong on just about everything, offered this in response to my plea regarding the NDAA:

While the two versions of the legislation were being reconciled, I, alongside Members of Congress from both political parties, expressed grave concerns about the provisions included in the Senate version of the bill that would strip the rights of due process for American citizens. We were not alone in these concerns. I heard from hundreds of my constituents who wrote and called to express their fears about the constitutionality of this particular language. All of our fears fell on deaf ears and the controversial provisions were included in the final conference report of the bill.

The national security of the United States is of utmost importance to me, but I voted against the conference report of the NDAA because it had the potential to strip the rights of due process for American citizens. The United States Constitution does not permit the federal government to detain American citizens indefinitely without charge or trial. Despite my opposition, the legislation ultimately passed the House of Representatives by a vote of 283 to 136. It was later passed the Senate by a vote of 86 to 13, and was sent to President Obama.

Even though the controversial provision has become law, I remain committed to fixing this unconstitutional policy. On December 15, 2011, Congressman Jeff Landry (R-LA), Congressman Emanuel Cleaver (D-MO), and I introduced legislation, H.R. 3676, to amend the detainee provisions of the 2012 NDAA to protect every American from unlawful indefinite detainment. There should be no doubt whatsoever that American citizens’ rights to their constitutional protections remain intact under this law. The legislation has been referred to House Armed Services and House Foreign Affairs Committees.

No person, not even the president of the United States, has the authority to strip an American citizen’s rights of due process afforded in the Bill of Rights. As your representative from Arizona’s First Congressional District, I will continue to ensure that the federal government acts within the laws provided for in the Constitution.

Now, I know you have some issues with DiFi’s similar bill in the Senate, But do these bills offer some hope of remedying this awful situation?

Of course, no one, American Citizen or not, should be subjected to indefinite detention without due process, but I guess the AUMF has kind of killed that quaint high-minded principle forever, now that we’re in an Eternal War.

@Bob Schacht: Oh, I do not necessarily have problems with DiFi’s bill other than it is just weak ass tea. Also, here is something to chew on – at least on this issue, and in that response, you tea party Congressman up there was a HELL of a lot better than BlueDog Dem Ann Kirkpatrick would have been.

@bmaz: Thanks for posting. (Same is being sent around on anti-torture psych listserv.)

It’s not tangential to bring up this gentlemanly critique of the Wittes/Chesney FAQ:

… in reading the [Wittes/Chesney] FAQ, I came away with the basic impression that the NDAA more or less codifies the status quo. Well, I wanted to work within the FAQ format to offer a slightly different perspective. Let’s start with the bill’s detention authority….

Does the NDAA expand the government’s detention authority?

Ben and Bobby say “Nope.” I say “Yup” (though I sincerely hope they are correct)….

Does it mandate military detention of terrorist suspects?

Ben and Bobby’s take: “Not really, though both supporters and critics seem quite sure that it does.” My take: “Very clearly under the expressed terms of the statute, though the President can waive the requirement or otherwise take actions to avoid mandatory military custody if he’s willing to take a political hit to do so.”

Etc.

And kudos to EW’s coverage, as well as WO’s points about Padilla and the encroaching codification of the new US dictatorship.

@bmaz: In this sense, my Congressman and Ron Paul represent the dinosaur wing of the Republican party. They *used to* be the party of “a man’s home is his castle,” privacy, opposition to unreasonable search and seizures, etc. However, the Eternal War Against Terror has changed all that, and Republicans are now as Statist as any Democrat when it comes to presidential power. They somehow don’t see this as contradiction the Reagan Doctrine that “Government is not the answer; Government is the problem.”

I think that the Republican party is in for a big shake-out, as they try to figure out who they are.

Wanting some balance and sense of perspective in analysis does not make one an apologist. Being rigid and unyielding in your rhetoric does make you much, much like the dysfunctional right.

Can we agree that this is a bad bill, maybe even a terrible bill, but that it has happened in the context of our modern politics and a world that already contained the god awful Patriot Act?

Seriously, let’s demand greatness, and demand perfection, and work towards perfection. That’s all well and good. But don’t turn into a basket case when things aren’t perfect. So be critical all day long, but your over the top emoting sounds like an audition for Fox News.

Is it fair to say that the only realistic way of heading back toward the sane side of the equation is to focus on the AUMF? All the threads tie back to it. The Executive Branch insists it has an unfettered right to detain and kill under it. Arguments in favor of law and due process (i.e., on human beings) have no effect because, so the story goes, “we’re at war.”

Why not hammer away at the foundation, namely, Sec. 2(a) of the AUMF which explicitly ties the use of force to “the terrorist attacks that occurred on September 11, 2001?” Yes, it includes “in order to prevent any future acts,” but that doesn’t get around the limitation, which is that the force that’s authorized is only “against those nations, organizations, or persons” linked to 9/11. After ten years, the Administration should be asked, again and again, what evidence it can present which shows that the people they’re hunting and killing in 2011 have anything to do with 9/11.

@GKJames: I agree with you about the fundamentally perverse nature of the AUMF, which is at the root of most of the bad civil rights happenings of the past decade. But the thing most definitely NOT to do is to amend the AUMF by removing references to 9/11– because that will put us on an eternal war footing forever!

The thing that I hope for is for Obama (? can he do it?) to declare that the conditions for the AUMF no longer exist, and that therefore, the AUMF is terminated and rendered no longer operative.

But what an Executive can do, can another executive undo? Like, the next president? This war cannot end like most other wars, with a capitulation and an armistice. It will end essentially the way the war in Vietnam ended: When we just decide to get out. But Nixon had no AUMF to fall back on, as Obama does. Would the best outcome be for Congress to declare the AUMF successfully concluded? Could we then get rid of the damn thing?

It turns out that the edited NDAA video of Carl Levin that was inaccurately cited in the mainstream media as proof that Obama wanted to detain US citizens was originally posted by a spammer. As we know, the President did not ask for language giving him the right to detain US citizens, he asked for the opposite. But that story wouldn’t get very many clicks for a spammer…..

Thanks to the hard work of several writers, we now know the truth behind the tin foil hat insanity trip of the edited Levin NDAA video that went viral. Congratulations, mainstream media – you got PWNED by a spammer.http://www.politicususa.com/en/edited-ndaa-video

The thing is, this “spammer” sent out the Levin video on Dec. 10th, apparently. But you had quoted Levin saying that “The Administration asked that this language be removed from the bill.” a month ago, before this “selectively edited” video was released by the “spammer”.

The NYT’s headline of shared blame is misleading at best, and disturbingly duplicitous at worst. In reality, the central facts in the article lay the majority of the blame at the doorstep of the US:

1) The US did not inform the Pakistanis that their joint US/Afghan special operations forces were conducting an operation in the border area as was required by a joint US/Pakistan agreement.

2) The US did in fact give “the Pakistani Army the wrong coordinates that were to be struck by Apache attack helicopters and an AC-130 gunship”.

The article goes on to say that the Pakistanis had not notified NATO as required of their establishment of the border posts, but I find that to be a rather small point against the Pakistanis as compared to the larger, overall picture.

Nothing was mentioned in the NYT’s article about why the US airstrikes apparently continued for hours, nor the Pakistani charge that this continuation apparently occurred in spite of repeated communications from the Pakistanis to their US counterparts. I wonder why this important part of the story is absent.

An article in the WaPo also reports the results of the US investigation of this incident, however, the WaPo piece does a better job of apportioning the real blame primarily to the US.

@joanneleon: I didn’t. I’ll have to look, but as you note, I’ve always cited the earlier exchange, which was Levin’s response to DiFi’s opposition to the bill from NOvember. I saw it live on CSPAN and then got the language from Levin. Plus, I had two liberals fighting with me bc they said Obama took out the language bc it might make it easier to detain Americans.

It looks like this is, itself, a spoof, that is cutting and pasting parts of the debate so as to use the 1032 language to claim Obama wanted Americans excluded.

The fact of the matter is it all comes back to Awlaki (as Kelly Ayotte noted, though oddly she was the only one). The Admin CAN’T have Americans (at least generally–though I think excluding Americans in the US would introduce other problems) excluded bc they used the detention authority to kill Awlaki.

The Obama Admin made it clear in their veto threat they might lose the ability to “incapacitate” terrorists. So they still need that.

@MadDog: I should also note that in the WaPo piece, they include a DOD “ass-covering no admission of fault” statement that anyone with even a thimbleful of brain matter can unpack to see that the majority of the fookup was the fault of the US!

I should also note that the AP’s piece on this incident also does a wee bit better than the NYT in apportioning most of the blame of the mistakes made to the US, however, at the very tail end of the AP piece comes this doozy from some anonymous US official:

“There was also an element of mistrust that contributed to the mistakes,” the official said, citing the report.

I would also note that in the AP piece there are some additional details not previously made public:

1) A minor point, but the airstrikes on the Pakistani posts were conducted by US Apache gunship helicopters, an US AC-130 gunship, and previously unmentioned in press reports, by US F-15 strike aircraft.

2) A more major point is the previously unpublished information that the joint US/Afghan special operations force conducting the operation was of considerable size. The AP piece reports that “the incident occurred after a company-sized joint U.S.-Afghan commando unit operating in the Afghan side of the border in eastern Kunar province came under fire from the direction of the border. A company is about 150 troops.”

Given the considerable size of the joint US/Afghan special operations force, and the fact that Pakistan was not informed of the operation as required by a joint US/Pakistan agreement, and then that last statement in the AP piece about our “mistrust”, one can ask “how would it be even possible for things to go right?”

According to this piece, it seems PM Gilani has now decided that there was a coup attempt. Given how things roll in Pakistan, I’m sure if we wait another minute or two, PM Gilani will retract what he’s just stated.

@joanneleon: Yeah, it’s demonstrably more of the same bullshit. They’re basing their claim based on other language about 1032 (now 1022) rather than Levin’s comments about 1031/1021. I don’t know whether all the apologists have decided to ignore the fact that there are two separate sections, one of which (1022) pertains to a subsection of the other (1021) all in one mob out of ignorance or deceit. But they have.

So to review: 1021 authorizes indefinite detention and, as currently written, states that nothing changes from status quo. We know Obama includes American citizens in that status quo because they used detention authority to kill Awlaki. 1022 mandates military detention, but does not mandate (though doesn’t prohibit it) for American citizens. Obama DOESN’T want that to apply in the US because it really fucks up the FBI.

@Bob Schacht: He did not interested in putting out any press releases saying he wanted to negotiate an end to the nonsense. Our actor-person, serving as PM would say ‘hey let us end this nonsense’ long before the band of lunatics in charge of the drone weapons could say they hid the body in the ocean.

The 1215 Charter [Magna Carta] required King John of England to proclaim certain liberties, and accept that his will was not arbitrary, for example by explicitly accepting that no “freeman” (in the sense of non-serf) could be punished except through the law of the land, a right which is still in existence today.

These parts of the NDAA would be declared unconstitutional by any reasonable Supreme Court, but I doubt we’ll ever see one again.

So, exactly who was it that managed to slip this through Congress with so little fanfare, opposition, or national debate? And what exactly was their motivation/concern? (My paranoid side suspects that OWS may have scared the 1% into insisting on this.)

@ Bob Schacht: Agreed; changing the AUMF by broadening it is neither desirable nor what I’m advocating. I’m simply suggesting that more public focus be placed on the unambiguous language as to its scope. Given fiscal realities as well as a tired military machinery, it may be an opportune time to challenge the idea of perpetual war, with the ultimate objective of treating sociopathic behavior by non-state actors as the criminality that it is. Without the war — something that we unilaterally decided it was, by the way, precisely because it permits the politically palatable circumvention of the legal system — there’s no authority to do any of this.

As if things aren’t bad enough. The AP reports that “A federal judge has signed a default judgment finding Iran, Taliban and al-Qaida liable in the Sept. 11 terrorist attacks.” The judge “signed findings of fact saying the plaintiffs had established that the Sept. 11 attacks in 2001 were caused by the support the defendants provided to al-Qaida. It also said Iran continues to provide material support and resources to al-Qaida by providing a safe haven for al-Qaida leadership and rank-and-file al-Qaida members.” Granted, the defendants failed to appear and defend the allegations, but to a government bent on a war with Iran, here’s the ticket to do it and, at least on paper as authorized by Congress, do it lawfully.

@emptywheel: Yeah, I was wondering if people were just confused. And I think some people *are* confused. But that propaganda piece by politicsusa doesn’t look like confusion to me. I haven’t seen the other piece that you mentioned — the one that links to you.

This meme that Levin’s words were taken out of context has been going around for about a week now. The first place I saw it was in a response to one of my comments on dkos. I asked for details but did not get them. Then a piece showed up on ThePeoplesSpew. Numerous people are saying, flat out, that Obama wanted an exemption for Americans on *detention*. Jay Carnie helped with this misinformation by saying that Americans were exempted.

The other meme going around is that the media and progressive blogs were “Breitbarted”.

So I don’t think this is a mistake. That is my opinion. I think there is a deliberate attempt to confuse the hell out of people and at the same time make a general statement that Obama wanted to make sure that indefinite detention did not apply to Americans. That is something that is easy for people to understand and accept — a sound bite that goes along with their rosey world view about him,.

@joanneleon: Well, I hate to give the prick hits, but here it is. And, no, this is not a mistake; this is campaign time now and this all goes beyond just the standard OBot/DLC Centrist cheerleaders that float around all the time.

I may not be the sharpest knife in the drawer, but isn’t it the sworn duty of every Congressperson to represent the American people in matters before Congress, and to uphold the U.S. Constitution?

If so, then how can legislation so widely opposed by the American people have been passed by a super majority in both congressional chambers?

Do 2/3 of your friends and family agree with the indefinite detention provisions of the NDAA? Every single person I know disagrees with it, so how was Congress “representing” us when they voted in favor of it?

Perhaps Congress is now autonomous, and I slept in the day that was announced.

The fact that Obama signed this horrific bill into law is not in the least bit surprising. As horrible as (former POTUS) G. W. Bush was, and as horrible as the Republicans are, the Democrats at large, including POTUS Obama, are also accountable, for being so complicit instead of really fighting back against the GOP. I admittedly don’t know all the facts, and I’ve never discussed it with friends or family, but, given the distrust that I have for our government, and the fact that the bill sounds rather sinister, I can still form an opinion, and have.

i know that area very well and have great affection for it. my sons went to james madison. i get my grits and buckwheat flour from wade’s mill, a little further south.

back to business. i guess i could read the judgment, but i probably won’t. i would love to know the key facts that lead the judge to decide that iran was involved.

as a general matter, it seems like the airplane bombings of 2001 did far more damage to this nation’s good judgment and democratic political and judicial processes than it did the physical safety of its people.

in short, we have allowed ourselves to become mentally unhinged by what was essentially a once-and-done event.

A standard argument that any first year lawyer could make, based on that statutory history, is that by having explicitly considered, added and then removed – at the president’s request – a provision exempting US citizens from this law’s reach, Congress impliedly left the decision whether to do so to the discretion of the president.

The law does not prohibit applying this detention law to American citizens, which it could have done. Congress thought of that and decided not to do so. Congressional leaders, like all good apologists who want the benefits of public office but none of its burdens, deferred to the president.

It will take no reach at all for federal courts – with a majority of Republican apointees, thanks to the irresponsible and unprecedented slowness of Mr. Obama in nominating candidates to the federal judiciary – to reach that conclusion. That’s especially so given that it is likely that the first case to reach the higher appellate courts on this issue will be during a Republican administration.

Once again, well played, Mr. Obama. Rarely has a Democratic president been so good for Republicans and hardline Republican priorities. The stakes are incalculably higher than they were when Jimmy Carter kept slipping on those banana peels and claiming that human rights would be the cornerstone of his foreign policy (while putting the hardline Zbigniew Brzezinski in charge of it). The risks to the lives of Main Street Americans and their civil liberties are enormous.